Cloud computing of works protected by copyright. The European Court of Justice rules on the limits of private copying exception

Cloud-based videorecording of works protected by copyright must be authorised by the owners of the right to the works.

This was established by the European Court of Justice through a long-awaited ruling published on 29 November 2017 (Case C-265716) on cloud computing, considered as the provision, through the Internet, of a shared and configurable pool of computing resources that are accessible via on demand self-service.

This was held following the request for a preliminary ruling by the Court of Turin as on a suit filed by the English company V. Limited against R. S.p.A. concerning the lawfulness of providing the clients of V.Limited with an on-line videorecording system of Italian television programmes broadcast by cable, including those of R. S.p.A.

In particular, the plaintiff company claimed that its service fell within the private copying exception to copyright law pursuant to art. 5, paragraph 2, letter b) of Directive 2001/29.

When asked about the interpretation of said ruling, the European Court of Justice first of all specified that the ruling in question must be interpreted restrictively, i.e. it cannot impose on the owner of the copyright “to tolerate, besides such an expressly provided limitation, violations of his rights deriving from the execution of private copies”.

In particular, the execution of a private copy “must be considered as an act capable of causing a prejudice to the concerned owner of rights, where the execution in question has not been authorised by said owner in advance”,

The Court then noted that the service offered by V. Limited has two purposes, on the one hand it organises the reproduction of TV programmes and, on the other hand, it provides access to the television broadcasting of certain TV channels that can be remotely recorded.

Having said that, the obligation to restrictively interpret the private copying exception requires that the owner of the exclusive rights to the works be not deprived of his right to prohibit or authorise access to the works of which physical persons intend to execute private copies.

In fact, pursuant to art. 3 of Directive no. 2001/29/EC, any communication to the public, including making a work of art available, is subject to the authorisation of the owner of the rights.

Therefore, in the case-in-point, the Court ruled that since the original broadcast by the TV broadcasting entity and the one by the service provider were made under specific technical conditions, through a different broadcasting method of the works and targeted to a different public, they are to be considered as two separate communications to the public hence each of them must obtain the authorisation of the owners of the rights concerned.

Thus, the Court held that art. 5, paragraph 2, letter b) of Directive no. 2001/29/EC “precludes a national provision that allows a company to provide private subjects with a cloud-based remote service for the videorecording of private copies of works protected by copyright, through a computerised system where said company takes action on the recording of such copies without having obtained prior authorisation by the owner of the right”.